By Rajiv Nayan
From July 2 to 27, 2012, the international community is assembling in the United Nations, New York, to negotiate the Arms Trade Treaty (ATT). The Treaty’s stated objective is “to create a level playing field for international arms transfers by requiring all States to abide by a set of standards for transfer controls, which will ultimately benefit the safety and security of people everywhere in the world.”
The negotiations for an ATT gathered momentum after the United States (US) supported the move for negotiations. Though the UN General Assembly passed resolutions for an ATT on many occasions, the 2009 resolution set the process for negotiations of the current stage of the Treaty. The resolution prescribed the convening of a ‘United Nations Conference’ on ATT in 2012. This is known as the Diplomatic Conference, which is meeting from July 2, 2012.
The resolution asked the Conference to gather for four consecutive weeks. During the period, the member countries are supposed to conclude ‘a legally binding instrument on the highest possible common international standards for the transfer of conventional arms.’ The resolution also asked for the convening of four sessions of the Preparatory Committee in 2010 and 2011 so that the legally binding instrument becomes balanced and effective.
The Arms Trade Treaty is not meant to progress towards a disarmament treaty. In fact, the emerging idea behind the treaty is to develop a regulatory mechanism for arms exports. So, it has nothing to do with arms transfers within a country. Before July 2 negotiations, this aspect has been highlighted quite prominently so that support for the ATT gathers strength. The ATT, in whatever shape it comes, will be implemented by the national governments. National export control systems and their procedures will include the provisions of the ATT. There will be no role for any ‘supranational agency’ for licensing or export controls of defence goods.
What has emerged so far with regard to the ATT? The four preparatory meetings, Open-ended Working Group meetings, the meetings of the Group of Governmental Experts, governmental representations and the proposals of the Non-Governmental Organisations have shaped the agenda for discussions on the ATT. Echoing the various resolutions on ATT and arms transfers, the Chairman of the PrepCom, in the draft paper circulated before the third PrepCom, underlined the inherent right of countries to exercise individual or collective self-defence in accordance with Article 51 of the UN Charter. However, the draft paper asked the member countries to avoid discrimination, subjectivity and the possibility of political abuse. The Third PrepCom released yet another chairman’s draft paper. This draft paper will be discussed in the Diplomatic Conference. However, in the PrepCom, several countries including India maintained that the chairman’s paper did not reflect the views expressed during discussions.
The chairman’s proposal had provisions for national authority and systems which should be transparent, predictable and effective in licensing. The draft proposal had other export control components such as drawing a national control list, transit and transshipment controls, and verification and validation of authorization. The chairman’s draft laid down that “[a]ll authorizations for an export of conventional arms in accordance with the treaty must be detailed on a form and issued prior to the export. Details of the authorization shall accompany the arms shipment and be made available to transit and transshipment States upon request.” However, the chairman preferred voluntarism for the format, content and conditions of the authorization. The draft proposal did seek a provision for taking the required national measures to control or stop diversion of supplied arms to ‘the illicit market or unintended user’.
In the chairman’s draft paper, the scope of the treaty included tanks, military vehicles, artillery systems, military aircraft (manned or unmanned), military helicopters (manned or unmanned), naval vessels (surface and submarine vessels armed or equipped for military use), missile and missile systems (guided or unguided), small arms, light weapons, ammunition for use in weapons mentioned earlier, parts or components specially and exclusively designed for these weapons and munitions, technology and equipment for the design, development, manufacturing and maintenance of these weapons.
The draft proposals contained provisions for import and transit controls as well. As for import controls, the draft proposal had measures such as end user certification, record keeping and third party control. By third party control the proposal meant measures to prohibit diversion to ‘the illicit market or unintended user’. As for transit controls, the chairman’s draft continued to rely on record keeping by the transit countries, the right of the transit state to inspect or seize shipments that are transferred violating the ATT and to prohibit diversion to ‘the illicit market or unintended user’. Thus, long-standing concerns regarding illegal and illicit transfers found a special place in the chairman’s draft proposal on implementation.
The chairman’s draft also proposed an institutional framework for implementation of the treaty. Member countries, according to the proposal, were asked to establish a national contact point. This national contact point would work with the Implementation Support Unit (ISU) of the treaty. The ISU was proposed to be set up later to serve as the repository for annual reports of member countries as well as reports on disputes on transfer denials, to support Assembly of state parties as well as member countries, to ‘act as a clearinghouse for offers and requests for assistance’, to coordinate with other international and regional organizations, to promote outreach to increase awareness of the objectives of the ATT and to take up other important responsibilities arising from time to time.
The proposal also had a provision for details of transfers. The Chairman’s draft wanted the future ATT to have a ‘description of arms’, and ‘the proposed recipient state and end user.’ However, it wanted states parties to keep the denial notification confidential and not to use it to gain commercial advantage. The draft proposed that the future ATT have an arrangement for information exchange, record keeping, reporting and transparency.
The Draft proposal also contained other provisions for the ATT. For enforcement, it wanted the inclusion of effective penalties, brokering activities, arrangements to prevent, counter and prosecute corruption, etc. It also wanted the future treaty to have mutual treaty assistance since many developing countries may need national capacity-building to implement the treaty. The proposal also had provisions for signature, ratification, accession, entry into force, withdrawal, reservations, amendments, assembly of states parties, review conferences, consultation and dispute settlement.
The Indian delegation responded to both the draft of the Chairman of the PrepCom circulated before the beginning of the third PrepCom meeting as well as the July 14 consolidated draft. On the chairman’s initial draft , the leader of the Indian delegation made it clear that the treaty should be ‘“self-implementable’ through national measures and a degree of international cooperation.” He also felt that ‘detailed and burdensome implementation and follow-up provision’ are not required. The focus of the Indian delegation was to achieve realistic parameters for implementation.
While India supported national implementation of the treaty, it did not extend support for detailed treatment of the administrative and constitutional mechanisms. It wanted the documentation, information and verification provisions under national control. It also opined that end user control is a subjective matter. India appeared sceptical on criminalization. It also opposed the formation of a separate monitoring or implementing body.
India viewed that many international regulatory mechanisms work without any secretariat. It did not favour a body which may have to depend on ‘financial and human resources made available perhaps by a group of countries and not fully responsible to the states parties. Implementation is and should remain the responsibility of states parties meeting at regular intervals.’
India also opposed detailed reporting and record-keeping provisions. It found that these provisions would only burden national governments. Also, it considered that there are national security, foreign policy and commercial sensitivities involved. India opposed notification and discussion of denials primarily because it found it intrusive and onerous with a potential for politicization.
India wanted greater clarity in objectives and goals. It wanted precision in defining illicit transfers which may help terrorism and other unlawful activities. India also wanted inclusion of the phrase—Non-State Actors—in the ATT. It wanted an agreed upon definition of all the listed weapons included within the scope of the treaty. Though it wanted small arms and light weapons, yet it opposed the inclusion of ‘ammunition, parts and components and technology in the scope of the proposed ATT’.
On implementation, India preferred the ATT to be less detailed. The leader of the Indian delegation stated in the PrepCom that “[o]ur objective is not to prescribe how export control systems should be designed or how they should be enforced. Our objective is to ensure that transfers are authorised after consideration of the criteria specified in the proposed treaty in due process based on national law and administrative procedures. Apart from being clearly national, implementation should also not burden importing and transit countries while granting intrusive rights to exporters to seek information and inspections. In our view the proposed treaty should reflect a balance between the rights and obligations of importers and exporters.”
The Diplomatic Conference is an opportunity for the international community to regulate the arms trade. This will also be a unique opportunity for the internationalization of export controls through a legally binding universal treaty negotiated in an international organization like the UN. The real task will be to adopt proper criteria and define the scope of an ATT. If very weak or too stringent criteria along with unreasonable scope are adopted, the treaty will fail to meet its objective. The treaty may start with a limited scope and expand it gradually. For this, it will have to draft flexible amendment procedures. Since the idea of export controls may be new for a large number of countries, and most of the proposed provisions are borrowed from existing systems in developed countries, the treaty should be flexible enough to remove redundant provisions and adopt new provisions suitable for changed circumstances.
Originally published by Institute for Defence Studies and Analyses (www.idsa.in) at http://www.idsa.in/idsacomments/TheArmsTradeTreatyandIndia_rnayan_020712